Constitutional Evolution Volume III

ATE: APRIL 2005

Extra-Constitutional Misadventures in Pakistan: An Overview – KAMAL UDDIN AZFAR
This article sheds light on the political turbulence that has marked Pakistan’s history and given shape to the various constitutional and extra-constitutional eras: the “Five Republics”. He discusses the evolution of our constitutional system, initially moulded by the departing British and later changed by various political leaders as and when required by political expediency. Outlining the pitfalls of all the previous as well as the prevailing constitutional structures in our country, he warns of a lost future in case we fail to resolve our constitutional issues and emphasises the need to concentrate on our economic problems.Barrister Kamal Azfar received his Masters degree in Philosophy, Politics and Economics from Balliol College, Oxford, in 1960 and was called to the Bar in 1963. A senior Advocate of the Supreme Court of Pakistan, he has appeared in a large number of reported cases. He was Minister for Finance, Planning and Development in Sindh (1972-74), and was elected to the Senate in 1975. Appointed Minister for Local Government and Rural Development  in 1990, he was elected to the Senate for a second term in 1994 before serving as Governor of Sindh from 1995-97. The author of Pakistan: Political and Constitutional Dilemmas, Pakistan under the Military and Asian Drama Revisited,  he is a regular contributor to legal publications.Discriminatory Amendments and Their Impact – ANIS HAROON
The author divulges the discriminatory nature of the amendments to the Constitution and their negative impact on the marginalised sections of society. Exposing the constitutional bias against minorities, she explains the detrimental impact of elections on the basis of separate electorates and of the draconian blasphemy law. She describes the havoc wreaked by the promulgation of the Hudood Ordinances and the resultant deterioration in the status of women in the country, and concludes with the hope that the government will change the Constitution to reflect the image it is projecting of itself as a progressive entity.
A graduate of the Sindh University, Ms. Anis Haroon obtained both her Masters in International Relations (1967) as well as her degree in law (1969) from the Karachi University. Beginning her career as a teacher and a journalist, she went on to become one of the leading human rights activists of Pakistan. Founder Member of Women’s Action Forum and the Human Rights Commission of Pakistan, Ms. Haroon is on the Boards of Aurat Foundation and South-Asia Partnership and is also the Secretary-General of the Pak-India Peoples Forum for Peace and Democracy and the Social Action Programme International Board. She was President of Aurat Foundation from 1994-2001 and is currently working there as the Resident Director, Sindh.Constitutional Evolution and Judicial Power – DR. S. MURALIDHAR
In this paper, the author is of the view that the expansion of the scope of judicial power and functioning has had a major impact on the evolution of the Indian Constitution. Focussing on the Indian judiciary and drawing parallels from Pakistani courts, he discusses this premise in view of the interaction between the judiciary and the legislature, the judicial review of executive action and the judiciary’s control of its own affairs whether regarding the interpretation of the limits of powers of other organs of State concerning the question of impeachment and removal of judges, or the scope of jurisdiction in Public Interest Litigation. He also outlines areas of common concern to the judiciaries of both countries.
Dr. S. Muralidhar earned his doctorate from the University of Delhi. He   was enrolled as an advocate in 1984 in Chennai and has been practising in the Supreme Court of India since 1987. His area of work includes constitutional law, election law, criminal law, human rights, legal aid and public interest litigation. A part-time Member of the Law Commission of India, he has also served as a member on the Supreme Court Legal Services Committee (2000-04). The author has written and spoken widely on access to justice, public interest litigation, economic, social and cultural rights and the death penalty. His book titled Law, Poverty and Legal Aid: Access to Criminal Justice was released in August 2004.Revival of Jirga System: What Next? – JUSTICE (R) NASIR ASLAM ZAHID
This article examines the proposed Sindh Amicable Settlement of Disputes Ordinance, 2004, and the constitutional standing of the system of jirga. Discussing three prominent judgements of the Superior Courts of the country in which the issue of jirga has come up for consideration, the author lauds the progressive stance adopted by our courts. The Criminal Law (Special Provisions) Ordinance II of 1968 and the Provincially Administered Tribal Areas Civil Laws (Special Provisions) Regulation of 1975 were declared void in these cases, as they were violative of the Constitution of 1973. The author advises immediate action to meet the challenge of parallel judicial systems if we are to maintain ourselves as a “civil society”.
A Barrister-at-Law, Justice (R) Nasir Aslam Zahid gained his masters degree from the University of Cambridge. He became the Judge of the Sindh High Court after twenty years of practice, went on to become the Chief Justice of the Sindh High Court and then a Judge of the Federal Shariat Court. He retired as a Judge of the Supreme Court of Pakistan in 2002. The author is Dean, Faculty of Legal Studies and Head of Hamdard School of Law at the Hamdard University, Karachi, since October 2000 and is also involved in a pilot project for provision of legal aid to women confined in prisons.Negotiation, Non-Cooperation and Liberation War – DR. KAMAL HOSSAIN
In this paper, the author reveals his belief that discrimination against the East Pakistanis began as far back as the inception of the country when colonial techniques were adopted to curb the majority by appointing weak and pliable individuals in political positions and non-Bengalis to administrative positions. He describes the dominant role of the West Pakistan establishment in the politics of Pakistan from 1947-1971, emphasising the role of Ayub, Yahya and Bhutto, and explains how the non-acceptance of the Six-Point agenda of the Awami League as part of the Constitution became the breaking point in 1971 and culminated in the “declaration of independance” by East Pakistan.
A graduate of Oxford, Dr. Kamal Hossain was called to the Bar in 1959. He obtained his doctorate in International Law from Oxford in 1964. A senior Advocate of the Bangladesh Supreme Court, he has served as both the Minister of Law (1972-73) and the Minister of Foreign Affairs (1973-75). Chairman of the United Nations Compensation Commission, Geneva (1999 to date), the Advisory Council, Transparency International (1999 to date) and the International Council, Centre for International Sustainable Development Law, Montreal (2000 to date), Dr. Hossain has numerous publications to his credit.

The Birth of Bangladesh: A Consitutional Perspective – HAMID KHAN
The author seeks to examine the events that led to the break up of Pakistan in 1971. Delineating the language problem as the first serious point of contention between the provinces of West and East Pakistan, he describes the widening of this rift due to issues such as provincial autonomy and the denial of representation to East Pakistan on the basis of population. Emphasising the role of Sheikh Mujib as an immature politician, he elaborates how the veteran West Pakistani politicians and leaders were unable to control the volatile situation they had helped create. This led to military action in East Pakistan, which resulted in the creation of Bangladesh.
Senior Partner at Cornelius, Lane and Mufti, Mr. Hamid Khan studied law at the Universities of the Punjab and Illinois. A senior advocate of the Supreme Court of Pakistan, with more than thirty years of practice behind him, the author has lectured at several prestigious institutions.  President of the Supreme Court Bar Association of Pakistan (2001-3) and the Lahore High Court Bar Associaton (1992-93), his publications include Constitutional and Political History of Pakistan, Islamic Law of Inheritance, Principles of Administrative Law and Administrative Tribunals for Civil Servants in Pakistan. Mr. Khan is an Ebert and DAAD Fellow as well as a member of The Hague Academy of International Law.

“Honour” Killings in Pakistan: What “honour”? Whose “honour”? – Tahira Abdullah
“Of these and other facets, violence against women is perhaps the most horrific and intolerable, since on one level, its impact ranges from physical injury, e.g. battery, acid throwing, stove-burning, or organ dismemberment, to unwanted pregnancy resulting from rape or gang-rape, to death from so-called ‘honour’ killings. On another level, the emotional trauma and mental scars remain for life with the survivor, quite apart from and in addition to the stigma, shame and ‘dishonour’ with which the survivor of violence against women is doubly victimised, along with her entire family. Many such victims are subsequently cast off by their families, especially those who have been subjected to rape or gang-rape.”

The Law of Qisas and Diyat as Incorporated in PPC, 1860 – Justice (R) Majida Rizvi

“Since the law is supposed to be based on Islamic jurisprudence, Quran and Sunnah, let us first see what is the concept of justice in Islam.  As is known, a law is introduced to provide justice to its citizens or  people.  God who is the Master of Universe is Himself Adil (just).  Justice is one of the causes for the creation of earth, as is ordained in Ayah 45:22:
Allah created the heavens and the earth for just ends, and in order that each soul may find the recompense of what it has earned, and none of them be wronged.
In the eyes of law, justice means equality with which the law should treat people, regardless of their social, political or economic status. According to Sura Al-Hujurat 49:9:
The Muslims are directed to make peace between them with justice and be fair for Allah loves those who are fair (and just).”

Welcome Back, Mr. Advani – Eds.
“In such an atmosphere of suspicion and scepticism, New Delhi drew up a list of twenty people who were wanted for criminal and terrorist acts. Alleging that these individuals were based in Pakistan, New Delhi demanded their extradition under the 1989 Treaty between India’s Central Bureau of Investigation and Pakistan’s Federal Investigation Agency for handing over accused from either country on request.
Islamabad responded in kind and declared that it too had a list of wanted criminals. This list was also submitted to the United States Federal Bureau of Investigation Director Robert Mueller. Topping that list was Lal Krishna Advani, chairman Bharatia Janta Party (BJP)…”

Woman versus Man – Rukhsana Shah
“The book is divided into six sections covering marriage laws, family pressure, divorce, domestic violence, murder for male ‘honour’ and population control. These are all issues that describe the position of Pakistani women in a male-dominated patriarchal society. In the present day context, they highlight the abysmal position of women, whose fate is determined not only by the traditional and myopic socio-cultural bias against them, but also as a direct result of the inadequacy of the laws protecting women.”